The Presidency of the International Criminal Court (ICC) approved the prosecution of Mr Germain Katanga by the Democratic Republic of the Congo (DRC) at the request of the DRC authorities. The key factor in the Presidency’s Decision was that the allegations against Mr Katanga in the domestic proceedings in the DRC are not the same for which he was tried before the ICC.
On 23 May 2014, ICC Trial Chamber II sentenced Katanga to a total of 12 years’ imprisonment. On 13 November 2015, a Panel of three Judges reviewed and reduced Mr Katanga’s sentence and, on 19 December 2015, he was transferred to the DRC, as the State of enforcement, to serve his sentence of imprisonment. On 10 March 2016, the DRC requested that the Court approve the domestic prosecution of Mr Katanga for offences allegedly committed by him on its territory between 2002 and 2006.
This decision constitutes the first time that the Court has been called upon to interpret and apply article 108 of the Rome Statute, paragraph 1 of which requires that the Court approve the prosecution, punishment or extradition of a sentenced person in the custody of a State of enforcement.
The Presidency considered that the Court’s approval should only be denied when the prosecution, punishment or extradition of a sentenced person may undermine certain fundamental principles or procedures of the Rome Statute or otherwise affect the integrity of the Court. The Presidency considered that the key relevant principle of ne bis in idem, as specified in article 20(2) of the Rome Statute, was not undermined as the national prosecution related to crimes other than those for which Katanga had been tried by the ICC. The Presidency also noted that Katanga, while informed that he could face domestic criminal proceedings, still requested that the DRC be designated as the State of enforcement. The Presidency also noted that the DRC had provided formal written assurances to the Court that the death penalty would not be sought or carried out against Mr Katanga. Finally, the Presidency noted that the DRC emphasised that the prosecution of Mr Katanga would take place consistently with the rights of the defence recognised in its Constitution, with the Presidency further noting that the DRC is party to a number of relevant international human rights treaties safeguarding the right to a fair trial.
Decision pursuant to article 108(1) of the Rome Statute